Scalia: Dead Wrong on Capital Punishment

In this essay, I’d like to tackle an argument made by Supreme Court Justice Antonin Scalia in an article published in First Things. I’ve always enjoyed reading Scalia’s SCOTUS opinions (and have been reading them for close to a decade now) and have been fascinated by how he was, on one hand, a staunch Catholic, while on the other, a hard-line supporter of capital punishment.


After watching a few episodes of Hulu’s The Handmaid’s Tale, I started looking into the philosophical underpinnings of the novel the series was based on. Apparently, a major influence was what is known as “Christian Reconstructionism” — a fundamentalist theocractic worldview that motivates an overthrow of traditional democracy in favor of a religious (Christian) state. Reconstructionism is practically dead as a philosophical movement, but I was surprised to see that one of its main onuses rests on a short passage from Romans:

Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake. (Romans 13:1-5)

Interestingly, Antonin Scalia quotes this very passage in a 2002 essay — God’s Justice and Ours — which is the very topic of this discussion. Immediately after quoting Scripture, Scalia writes:

This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government—however you want to limit that concept—derives its moral authority from God. It is the “minister of God” with powers to “revenge,” to “execute wrath,” including even wrath by the sword (which is unmistakably a reference to the death penalty). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” And in this world the Lord repaid—did justice—through His minister, the state.

Simply put, Scalia makes two key claims:

  1. The government derives its moral authority from God.
  2. The government has a moral right to capital punishment.

I take issue with both. A corollary is that “the more Christian a country is, the less likely it is to regard the death penalty as immoral” — which Scalia writes in his next paragraph.

The Government and Moral Authority

Here, we begin by tackling Scalia’s first claim, namely: “The government derives its moral authority from God.” I will show that this can be interpreted in two ways, but that both ways lead to an incomprehensible conclusion. So, therefore, this is not what Paul could have possibly meant.

Moral Authority is Essential

This first interpretation is a hard-line universal conditional statement: by definition, all governments posses moral authority (which they derive from God). We will assume that all moral authority is, inherently, derived from God. This is, of course, controversial, but let’s assume it for the sake of simplifying Scalia’s position.

To show how this simply cannot be, we need to find a counterexample: one a government that has no moral authority. This is, as you might have imagined, trivial. Consider the very government Paul was referring to: the Roman Empire. Carthage, the Dacian Kingdom, the Jews, and various Spanish and Gaulish peoples were all subjected to what we would modernly called genocides; the Servile Wars also entailed tremendous human suffering, including mass crucifixions. Given that Romans severely persecuted the early Christians, it seems to weaken this position further. How could these atrocities have possibly been acts of moral authority — and even worse, how could God have possibly granted it?

Consider modern examples: Nazi Germany or the ISIS Caliphate. To argue that these governments exhibited moral authority is reaching to say the least. Further, to make the claim that the moral authority they exhibited was derived from God seems downright contradictory. Many elements of these governments seem to be contradictory with the very nature of an eternal, omniscient, omnipresent, and wholly-loving being — the God of the New Testament.

Moral Authority is Accidental

Scalia could have meant that God simply allows governments to have moral authority. To me, it seems that this is more consistent. At various points in time, different governments have power. As history is under the authority of God, and all things that happen, happen under His guidance and watch, it follows that, in some sense, God did allow, say, the Nazis, to take power. Under this view, moral authority seems to be an accidental — we could say contingent — property of governments.

So yes, under this view even the Romans, or the Nazis, or the ISIS Caliphate, has some semblance of authority derived from God — but my next question is: is this authority moral?

Not All Authority is Moral

Aquinas argued that even governments are subject to moral laws. And in the Crito, Socrates famously teases out why the government is justified in jailing and executing him — clearly showing that the Laws of Athens can be held to some standard of justice.

So even if we grant that authority is indeed a property of all governments (either accidentally or essentially), we can’t possibly agree that all authority is moral. Indeed, Paul asks us to respect authority — but makes no argument that the authority is moral. See counterexamples above.

Capital Punishment is Sometimes Immoral

Given our analysis so far, we see that governments do not always act morally. Therefore, it should be no surprise that government-perpetrated capital punishment is sometimes immoral. Thus, we’ve shown that even though government has, according to Paul, a right to capital punishment, that right is not always morally executed.

What Paul Meant

But this all begs the question: what, exactly, did Paul mean in Romans 13? Given, as we’ve seen, that he couldn’t’ve possibly meant that all government action is moral, we’re left with a weaker claim that some government action is moral.

In other words, moral punishment is sometimes executed via the justice system (perhaps in the form of the death penalty). Presumably, other times, it’s via illness or accidental death. And sometimes, it’s left to be executed at God’s leisure. We might question God’s apparent lack of uniformity here, but note that this indiscriminacy is not something new:

That ye may be the children of your Father which is in heaven: for he maketh his sun to rise on the evil and on the good, and sendeth rain on the just and on the unjust. (Matthew 5:45)

In other words, sometimes people don’t get what they deserve: good or bad. Job is the canonical example. Government action, I would argue, is another.

The Moral Government

In his corollary, Scalia says, as I mentioned in the introduction, that “the more Christian a country is, the less likely it is to regard the death penalty as immoral” — is he right? The only case of capital punishment being unequivocally morally being enforced (in the New Testament) is in the famous case of Ananias and Sapphira. But we need to be careful: God himself executed that judgment. It was not left to an agent of God (be it a government or an executioner or an apostle). So Ananias and Sapphira doesn’t get us too far: we can only confirm that, yes, capital punishment is moral if executed by God, but extruisms are not very exciting.

So what about Scalia’s corollary? It also seems like a truism. Yes, in a perfectly moral society, all government action will be perfectly moral. In a perfectly Christian society, the death penalty will always be enacted in accordance with God’s will and therefore will always be an analogue to the Ananias and Sapphira case. It again, doesn’t seem to buy us much.

The Death Penalty should be Abolished

In a society that’s less-than-morally-perfect (or, in Scalia’s case, less-than-wholly-Christian), there ought to always be a moral objection to the death penalty. Simply put, Scalia’s argument is self-defeating: we should abolish the death penalty precisely because we are not a perfectly Christian (or moral) society. And until then, it should remain abolished.

What’s the test for perfectly moral or perfectly Christian? God only knows.